Chapter 6

Veracity and propensity evidence

Evidence of veracity: issues

6.55The following discussion covers issues that have been raised by submitters in relation to the veracity provisions, and also revisits issues that were identified in the Law Commission’s 2008 report and 2010 advice to the Minister.

Definition of veracity

6.56The definition of veracity is critical as it determines whether the veracity provisions apply to a particular piece of evidence. Section 37(5) defines veracity as “the disposition of a person to refrain from lying, whether generally or in the proceeding”. One of the leading texts on the Evidence Act has suggested that the negative way in which this definition is cast becomes potentially confusing when it comes to making the enquiries required under s 37(3) to determine substantial helpfulness. This is particularly the case with s 37(2)(b). If the definition of veracity in s 37(5) is substituted for the term “veracity” in that paragraph, it asks the judge to determine whether the proposed evidence about veracity tends to show that the person whose veracity is in question has been convicted of one or more offences that “indicate a propensity for … lack of … a disposition to refrain from lying”.

6.57This potential confusion seems to stem from reading s 37(2)(b) as referring to offences indicating a propensity for dishonesty or a propensity for a lack of veracity as opposed to a propensity for dishonesty or a lack of veracity. Read the latter way, the paragraph does not present the same kind of potential for confusion.

6.58However, there does remain a substantial issue regarding the definition of veracity in s 37(5) and therefore the scope of the veracity provisions as a whole. This is the issue that emerged following the Court of Appeal decision in Tepu, which was discussed in the Law Commission’s 2010 advice to the Minister of Justice set out above.

6.59 Elisabeth McDonald has recently summarised the problem raised by the Court of Appeal’s decision in Tepu in the following way:429

The facts of R v T[epu] illustrate the difficulties the prosecution may have when seeking to offer veracity evidence about a defendant in the absence of a trigger under s 38. There will either need to be acceptance of an argument that the evidence falls outside the definition of veracity (on the basis of purpose or use), or adoption of the approach taken by the Court of Appeal [in Tepu]. There is no equivalent to s 43 with regard to veracity evidence, but general agreement that the Court reached the correct position in R v T[epu] (in spite of s 38(2)) may indicate the need to consider a provision that does not depend on the common law “tit for tat” approach.

6.60McDonald’s view on the appropriate scope of the veracity provisions (and by implication the way that the definition in s 37(5) ought to be cast) is that:430

Evidence of someone’s veracity may be helpfully thought of as a piece of evidence extraneous to the subject matter of the proceedings. The definition of veracity in s 37(5) of the Act may not make this entirely clear, stating that “veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding”. However, the wording in s 38(2)(a) that states “by reference to matters other than the facts in issue” indicates more clearly that the type of evidence s 37 is intended to cover is narrowly constrained; the sort of material that at common law would have been within the scope of the collateral issues rule.

6.61McDonald cites material from the Law Commission’s files indicating that it intended that a distinction be drawn between truthfulness in general, and truthfulness of the evidence on a particular matter in the proceeding.431

6.62This distinction has also been cast as a distinction between “probative credibility” and “moral credibility”:432

Investigation of the credibility of a person’s account of relevant facts, or the weight of their evidence, through cross-examination or otherwise, does not always raise concerns of time-wasting or distraction. What might be referred to as “direct proof of mendacity” (or “probative” credibility), that is, calling other people to contradict a witness’s account, should be contrasted with “indirect” proof; that is, suggesting that the witness is the kind of person that should not be believed (“moral credibility”).

6.63Given recent decisions, it seems that the Court of Appeal and the Supreme Court are adopting a broadly similar approach to interpreting the veracity provisions. In Weatherston v R the Court of Appeal said:433

The policy of ss 37 and 38 was not intended to limit the ability of prosecutors to ask defendants or other witnesses directly whether their evidence was truthful. The concern of ss 37 and 38 is with diverting trials into collateral issues. That concern did not arise in the present case.

The Court of Appeal correctly interpreted and applied the Act. Sections 37 and 38 are not intended to relate to that kind of questioning of veracity and are, instead, like the old collateral issues rule, intended to stop the introduction of material outside the scope of facts directly or indirectly in issue.

6.65It has been suggested that one way of dealing with this would be to apply a similar approach to the scope of veracity evidence as is applied to propensity evidence by s 40(4) by considering the main purpose of admitting the evidence. In commenting on the Court of Appeal’s decision in Tepu, Scott Optican and Peter Sankoff commented:435

… the lies were not tendered for the purpose of attacking the witness’s veracity. Sections 37 and 38 played no part in the analysis, not because the lie was irrelevant to the defendant’s veracity, but because any such effect was merely subsidiary to the main purpose of admitting the evidence.

Approaching the matter in this way would effectively mirror the manner in which the Evidence Act treats propensity evidence that has another potential use. Section 40(4) provides that the propensity rules are inapplicable where the evidence – despite having some relevance regarding propensity – is “solely or mainly relevant to veracity”. In the same way, it is suggested that where the evidence is solely or mainly relevant to something other than the witness’s veracity, the rules governing veracity should be inapplicable.

6.66 It is not necessarily helpful to draw a parallel with s 40(4), however, in determining the scope of the veracity rules. The purpose of s 40(4) is to prevent evidence that is primarily veracity evidence but is cast as being about a person’s propensity for veracity (or lack of veracity) being admitted in circumvention of the veracity rules, particularly the need for veracity evidence to be substantially helpful.436

6.67The problem with the scope of the veracity rules is not one of the evidence needing to be considered for admissibility under another set of rules that limit the use of such evidence. Rather, it is simply that the evidence is not of the type that requires application of special rules governing admissibility and its admissibility should be governed by the general rules in the Act.

6.68Accordingly, the solution proposed by McDonald, to make clear on the face of s 37(5) what constitutes veracity evidence, is a better approach to the problem. We think s 37(5) should be amended to make clear the distinction that was intended by the Law Commission, namely, that that there be “no rule that prevents a party from offering evidence contradicting or challenging a witness’s answers given in response to cross-examination directed solely to truthfulness …”.437 This could be done by simply deleting the words “whether generally or in the proceeding” from s 37(5).

6.69Commenting on the Tepu decision and the debate surrounding the Court’s approach in that case, the Law Commission noted in its 2010 advice that the evidence in dispute (evidence of a lie about the alleged offending at issue in the proceeding) would have been admissible under the common law and should continue to be admissible under the Act. We think an amendment to s 37(5) to put this beyond doubt is desirable.

R11 We recommend amending s 37(5) by deleting the words “whether generally or in the proceeding”, which would have the effect of making clear the distinction that was intended to be drawn by the Law Commission in relation to veracity evidence, namely, that there be “no rule that prevents a party from offering evidence contradicting or challenging a witness’s answers given in response to cross-examination directed solely to truthfulness ….”

Matters relevant to an assessment of whether evidence is “substantially helpful”

6.70Section 37(3) sets out matters that a judge may consider in assessing whether evidence is “substantially helpful”. It has been suggested that s 37(3) is too narrowly drawn. By way of example, “ordinary lies” are not substantially indicative of a lack of veracity (only lies that are told when under a legal obligation to tell the truth come under s 37(3)(a)). Furthermore, s 37(3)(b) is uncertain in terms of what sort of offences indicate a propensity for dishonesty or a lack of veracity.438

6.71In terms of the point about s 37(3)(b), the Law Commission, in its 2008 report, questioned whether the reference to “dishonesty” in this paragraph was appropriate:439

First, it is questionable whether a Court should have regard to previous convictions for offences which indicate a propensity merely for “dishonesty” as opposed to “lack of veracity” (matters which are so distinguished in section 37(3)(b)). It is veracity that is in issue. If it is an offence of dishonesty, without bearing on veracity, why should it be accorded equal treatment? Indeed, given the empirical evidence, such as it is, some might say it should not be treated differently from other non-veracity convictions such as violence. It is to be expected courts will endeavour to read down “dishonesty” where there is no significant veracity element included, as has occurred in England, but the Courts should not be forced into attempting to ignore a stipulation which Parliament has imposed in this way. Specific amendment may be warranted.

6.72The point has also been made that there are three concepts in s 37(3), namely veracity, dishonesty and untruthfulness (introduced by s 37(3)(e)), which might lead to points being litigated on the basis of “esoteric distinctions among these three concepts”.440 As discussed earlier, the Select Committee made a deliberate decision to replace the term “truthfulness” (proposed by the Law Commission) with “veracity”. The Committee took the view that “veracity” was “more appropriate as it places the emphasis upon the intention to tell the truth, whereas “truthfulness” is more readily confused with factual correctness”.441

6.73It is of note that (as discussed above) the list of matters in s 37(3) did not actually form part of the Law Commission’s proposed Evidence Code, but rather were matters included in a list in the commentary by way of illustration of a point. When the Select Committee decided that legislative guidance was appropriate, the list from the Law Commission’s commentary was simply picked up by the drafters and incorporated into the Bill.442

6.74 A further point about s 37(3) that should be borne in mind is that the list of factors set out in this subsection is expressly stated to be “neither necessary nor exclusive considerations”.443 The fact that the subsection is cast in this way suggests that the legislative intention was to include these matters as being particularly “appropriate” considerations when assessing what is “substantially helpful”, but not precluding consideration of other relevant factors.444

6.75In the Law Commission’s view this might include “ordinary lies” told when the person is not under any legal obligation to tell the truth. At this point we consider that no amendment to s 37(3)(a) to include such “ordinary lies” is necessary. “Ordinary lies” are clearly not as damning in terms of veracity as lies told when under a legal obligation to tell the truth (and therefore are far less likely to be “substantially helpful”), but there is nothing to prevent a judge from taking account of them where the circumstances are such that the evidence reaches the “substantially helpful” threshold. However, it is less likely that evidence of ordinary lies will reach that level of helpfulness than evidence of lies told under a legal obligation.

6.76The Law Commission does, however, remain of the view that the inclusion of previous convictions for offences that indicate a propensity merely for “dishonesty” as opposed to “lack of veracity” in s 37(3)(b) is problematic.

6.77It is worth noting that the wording of s 37(3)(b) differs from the description of the convictions that might be appropriately considered by a judge in the Law Commission’s commentary. There the Law Commission referred to where:445

… the person has been convicted of one or more offences, and the nature and number of the offences (convictions for some offences, such as perjury or fraud, may be more relevant to truthfulness than others, but the relevance of a previous conviction will also depend on the circumstances of the particular case).

6.78This was translated into a reference to “offences that indicate a propensity for dishonesty or lack of veracity”. We consider that this drafting should be amended to better reflect the relevance of previous convictions to veracity.

6.79Put simply, the inquiry under this subpart of the Act is as to “veracity”. Accordingly, any evidence of previous offending that is to be considered in this inquiry should be directed to veracity and not to “dishonesty”. As has been noted elsewhere, theft is an offence that is usually committed with no lie having been told.446

6.80The Law Commission noted previously that it was open to the courts to read down “dishonesty” where there is no significant veracity element indicated by the evidence. Indeed, this does seem to have occurred in practice with the Court of Appeal having expressed doubt about whether petty theft and shoplifting can cast light on an offender’s propensity to tell the truth when giving evidence.447 However, it is, as the Law Commission said in 2008, inappropriate for the courts to be forced into ignoring a stipulation which Parliament has imposed.

6.81For this reason, an amendment to s 37(3)(b) to remove the words “dishonesty or” is appropriate and we recommend accordingly. A simple reference to “offences that indicate a propensity for lack of veracity” does not impose any rules as to the categories of offence that might be considered (as a reference to dishonesty offences appears to do), but rather leaves it to the courts to determine whether the circumstances of the prior offending will be substantially helpful in assessing veracity in the present proceeding.

6.82We have considered whether s 37(3)(e) should be similarly amended as it refers to a motive on the part of the person to be “untruthful”, which is a different concept from that of “veracity” (as is “dishonesty”). However, the removal of the reference to “dishonesty” in s 37(3)(b) is recommended as the word “dishonesty” in that paragraph refers to particular types or a category of offences rather than being a reference to the concept of dishonesty generally. As the reference to “untruthful” in s 37(3)(e) does not seem to have caused any difficulties or confusion in practice, no recommendation is made in relation to that paragraph at this time.

R12 We recommend amending s 37(3)(b) to remove the words “dishonesty or” to leave the courts free to consider on the facts of individual cases whether the circumstances of prior offending really are substantially helpful in assessing veracity.

Veracity that is an ingredient of a civil claim or element of an offence

6.83Section 36 provides:

36 Application of subpart to evidence of veracity and propensity

(1) This subpart does not apply to evidence about a person’s veracity if that veracity is an ingredient of the claim in a civil proceeding or one of the elements of the offence for which a person is being tried in a criminal proceeding.(2) This subpart does not apply so far as a proceeding relates to bail or sentencing.(3) Subsection (2) is subject to section 44.

6.84The authors of one of the leading texts on the Evidence Act have said that it is not possible to identify a situation in which subs (1) will apply in a criminal proceeding:448

It is difficult to construct an example where s 36(1) would apply in criminal proceedings. The first edition of this book suggested a perjury prosecution, but this view must now be questioned. The difficulty arises from s 37(5)’s definition of veracity as a person’s disposition to refrain from lying “whether generally or in the proceeding”. The focus of a perjury charge is the defendant’s truthfulness or otherwise on the particular occasion in question. In terms of s 36(1), the defendant’s disposition to refrain from lying generally (or in the proceeding) is not “one of the elements of the … (offence or perjury).” No example readily springs to mind of any other offence which contains such an element.

6.85The authors do go on to note that the fact that a perjury prosecution does not, in their view, come within s 36(1) does not “present any great problems for the prosecution”. In attempting to prove the crucial fact of the defendant’s dishonesty when giving the allegedly perjured testimony, the prosecution would not have to meet the s 37(1) “substantial helpfulness” test, nor be concerned with any of the other veracity rules because of the very fact that it does not fall within the definition of “veracity evidence” in s 37(5).449

6.86The Law Commission clearly envisaged that what became s 36(1) would apply in perjury prosecutions. In its report on its proposed Evidence Code, the Law Commission specifically gave the example of perjury as a criminal proceeding to which s 36(1) (which was s 38(1) of the proposed Evidence Code) would apply.450

6.87We are not aware of any cases where s 36(1) has caused a problem and nor was it raised in any submissions the Law Commission received during this review. Even if the commentators are correct and s 36(1) does not apply to a perjury prosecution, this would not present a problem for the reason set out above. Accordingly, legislative amendment would not seem to be required at the present time.

Tit for tat rule

6.88Section 38 provides:

38 Evidence of a defendant’s veracity

(1) A defendant in a criminal proceeding may offer veracity evidence about his or her veracity.(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if—

(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and(b) the Judge permits the prosecution to do so.

(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:

(a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence:(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

6.89The prosecution may only offer evidence about a defendant’s veracity in limited circumstances. A defendant will “open the door” to evidence about his or her veracity being offered by the prosecution when:

he or she offers evidence about his or her own veracity; or

he or she challenges the veracity of a prosecution witness by reference to matters other than the facts in issue.

6.90When either of these things occurs, then the prosecution may offer evidence about the defendant’s veracity if the judge grants permission for it to do so. In this way, s 38(2) can be described as a “tit for tat” rule. This rule gives rise to a number of issues:

Should the tit for tat rule be retained?

When does a defendant offer evidence about their veracity so as to engage subs (2)(a)?

What limits does the rule place on the cross-examination of a defendant?

Retention of the “tit for tat” rule

6.91 It is of note that the Law Commission has, elsewhere in this report, rejected a “tit for tat” proposal in relation to propensity evidence on the basis there is no logical connection between the defendant’s past sex offence convictions and the fact that a defendant has been granted leave to question a complainant about her own sexual history.451

6.92In proposing the rule that came to be s 38(2), the Law Commission said:452

The Commission considers that different rules should apply when dealing with evidence that is solely or mainly relevant to the truthfulness of a defendant in a criminal proceeding (whether or not the defendant is a witness). Admissibility rules governing evidence of truthfulness (or propensity) should not admit unfairly prejudicial evidence that may undermine the protection the law traditionally gives defendants under the criminal justice system.

6.93Despite the emphasis on protection of defendants’ rights in the commentary, the provision that the Law Commission proposed was more liberal in terms of what the prosecution could do than the rule that was eventually enacted in s 38. Section 40(2) of the Evidence Code read:

The prosecution in a criminal proceeding may offer evidence about a defendant’s truthfulness, but cannot offer evidence that the defendant has committed, been charged with, or been convicted of an offence which is relevant to truthfulness (other than the offence for which the defendant is being tried) unless

(a) the defendant has offered evidence about the defendant’s truthfulness or challenging the truthfulness of a prosecution witness; and(b) the judge gives permission.

6.94As noted above, the Select Committee made substantial amendments to this provision. These were made as a result of submissions by the New Zealand Law Society that the major change in the law that the Law Commission proposed was unjustified.453 The Committee described its changes to what became s 38(2) as reinstating “the existing law that limits the opportunity for the prosecution to call evidence as to the defendant’s bad character”,454 although commentators have said that the Select Committee’s intervention has led to s 38(2) preventing a broader range of evidence from being led than the common law had previously.455

6.95The basic rationale for the common law retaliatory rule was that while it was generally considered unfair for a defendant to be exposed to cross-examination as to his or her criminal record, there should be a cost to a defendant who made allegations against a prosecution witness or who put his or her own veracity in issue.456

6.96While the common law’s “tit for tat” approach might have operated effectively to discourage unnecessary or gratuitous attacks on witnesses, there is no obvious logical connection between the defendant’s veracity and a challenge to the veracity of another witness. Furthermore, there is also a serious question about whether the law of evidence is the appropriate place to be putting in place incentives in relation to the conduct of the criminal trial process.

6.97In light of these factors, there are three obvious options in relation to s 38(2):

no change from the present;

amend to broaden the range of veracity evidence that the prosecution may lead about the defendant without the defendant having first “opened the door” in one of the ways set out in s 38(2)(a); or

remove s 38(2) altogether and rely on ss 7 and 8 in combination with s 37 to strike an appropriate balance between what is fair to the defendant and the interests of justice in having all relevant information, including that pertaining to the veracity of the defendant, available to the fact finder.

6.98The strongest argument for no change is that, as far as the Law Commission is aware, there have not been difficulties with s 38 that are resulting in miscarriages of justice or manifest unfairness. However, as the Law Commission made clear in its 2010 advice to the Minister of Justice, despite the arguments about the reasoning applied by the Court of Appeal in the leading case of Tepu, it was comfortable with the result reached by the Court.

6.99In terms of possible amendments to s 38(2)(a), there are two obvious options. One would be to amend in the way originally suggested by the Law Commission in the Evidence Code. That is, the prohibition in s 38(2) would only apply to evidence of offending / alleged offending by the defendant that related to the truthfulness of the defendant. Other veracity evidence about the defendant would be able to be offered by the prosecution provided that it met the substantially helpful threshold and was relevant.457 This approach was specifically rejected by the Select Committee.

6.100A further option that has been suggested is an amendment to s 38(2)(a) to permit the prosecution to offer evidence of defendant’s veracity by “reference to the facts in issue”. It has been noted that the defendant is permitted to do this without risking retaliation by the prosecution, yet the same is seemingly not possible for the prosecution, who must wait for the trigger in s 38(2)(a).458 This would in effect be achieved if the amendment to s 37(5) that the Law Commission recommends above is made.

6.101If s 38(2) were repealed altogether, the alternative would be to simply rely on ss 7 and 8 in combination with s 37. This would obviously be a radical change in the sense that the law has long provided special protection against challenges to the veracity of a defendant in a criminal proceeding in comparison with the protections afforded to witnesses and other persons. This protection has been seen as operating as an incentive to defendants to consider any attack on the veracity of a prosecution witness very carefully.

6.102At this stage, the Law Commission is not minded to recommend amending the “tit for tat” aspect of s 38(2), or its repeal. We acknowledge that this aspect is not entirely logical in connecting an attack on a prosecution witness with the veracity of the defendant. And it is a lack of logical connection that has convinced us that a suggested “tit for tat” approach not be put in place in the propensity evidence provisions. However, the Select Committee that considered the Evidence Bill took a deliberate decision in relation to what became s 38(2). In recommending the reinstatement of the former rule limiting the prosecution’s ability to call evidence as to the defendant’s bad character, the Committee said that the approach taken by the Law Commission in the Evidence Code “would move the balance in favour of the prosecution”. 459It clearly regarded such a change as inappropriate.

6.103In the context of a review focused on the practical operation of the Act, we consider that it would be inappropriate to recommend a radical policy change in the absence of any identified problems with this section. Furthermore, we have recommended an amendment to s 37(5) that will have the effect of clarifying that the veracity rules are engaged in the manner originally envisaged by the Law Commission. This will in effect limit the scope of the rule in s 38(2)(a). This may be an issue that can be considered again in the future when the Law Commission’s proposed amendment to s 37(5) has had time to “bed in”.

When does a defendant offer evidence about their veracity so as to engage s 38(2)(a)?

6.104Under the common law the position was very clear: the prosecution could not challenge the defendant’s veracity if the defendant did not give evidence.460 Section 38(2)(a) allows the prosecution to offer evidence if the defendant has offered evidence about his or her veracity. This can lead to possible complications where the defendant does not take the stand to offer evidence about his or her veracity, but evidence of their pre-trial statement to police is led. In some cases, arguably this engages para (a) and thus “opens the door” to allow the prosecution to lead evidence of the defendant’s veracity.

The point is logical. The veracity of the defendant has come into issue. Evidence on the point becomes relevant accordingly. However, it might be thought a bizarre situation if the prosecution can engineer a right to lead evidence as to a defendant’s previous convictions going to veracity through the prosecution offering evidence itself, quite possibly against the defendant’s wishes, and especially when the defendant’s evidence in issue is un-sworn and open to discounting accordingly.

6.106The Law Commission then went on to express doubt that this could have been Parliament’s intention, given that it had reinstated the full common law protections limiting the prosecution’s ability to offer evidence of a defendant’s bad character in what became s 38(2). The Law Commission considered that a proper reading of the Act required a strict approach – when the defendant does not give evidence from the witness box, the veracity of the defendant is not put in issue by the defendant and is not relevant.462

The preferable view, based on the cardinal principle of relevance, may be that the previous position survives, and the prosecution may not do so. However there remains a further question whether that is so when the defendant’s statement to police (if any) has been put in evidence by the prosecution. There are policy issues involved, and some dissatisfaction. It is desirable the obscurity be clarified.

6.108We understand that, at least at District Court level, an out of court statement made by the defendant is being treated as putting his or her veracity at issue on occasion.464 While there is some doubt about the precise parliamentary intention, we consider that this is an aspect of the Act that would benefit from clarification. Accordingly, we recommend an amendment to s 38 to clarify that a defendant only “opens the door” to the prosecution giving evidence of their veracity when he or she gives evidence in court.

R13 We recommend amending s 38 to clarify that the defendant only “opens the door” to evidence about his or her veracity being introduced by the prosecution when he or she gives evidence in court.

Cross-examination of the defendant

6.109Another issue that has been raised with us is whether the drafting of s 38 imposes a complete prohibition on any attack on a defendant’s veracity unless he or she has first opened the door to such evidence through s 38(2):465

… the prosecution is absolutely prohibited from suggesting that the defendant is lying when the defendant gives evidence of his or her innocence. In view of s 4’s definition of “offer evidence”, this prohibition on the prosecution offering evidence of the defendant’s veracity will cover the process of cross-examination of the defendant as well.

The surprising result of the argument … is that in a case where the defendant gets into the witness box and gives evidence of his or her innocence, but not about his or her veracity, the prosecution is prevented from cross-examining the defendant by such traditional means …

6.110This potential issue does seem to have been dispelled by the approach taken to the veracity provisions by the Court of Appeal and the Supreme Court in the Weatherston appeals, as discussed above.

6.111Furthermore, the Law Commission’s proposed amendment to s 37(5) would seem to put the matter beyond doubt. Accordingly, no amendment to s 38 is required in this regard.

451See Elisabeth McDonald and Yvette Tinsley “Evidence Issues” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) 279 at 355 and the discussion at paragraph 6.134 of this report.

457In order for evidence about the defendant’s veracity to be relevant, the defendant’s veracity would need to be in issue, either because the defendant had given evidence him or herself or because there was evidence of a pre-trial exonerating statement made by the defendant. See Mahoney and others, above n 436, at 183. See below in relation to the latter situation where the defendant does not give evidence but a pre-trial statement is admitted.